10/03/09 - When the Champlin’s Marina case finally reached the state’s highest court on Tuesday, marina lawyer Kathleen Managhan pushed for a resolution. The marina’s expansion application has been unreasonably delayed by nearly six years of deliberation, she said.

But Supreme Court Justice William Robinson III quickly provided some perspective. “The Great Salt Pond has been around millions of years,” he said. “I’m not terribly troubled by that.”

The town, the Coastal Resources Management Council, the Conservation Law Foundation and a host of island environmental organizations were in the Supreme Court chambers asking the court to reverse Superior Court Judge Netti Vogel’s ruling in February. Her decision in effect would allow Champlin’s to appropriate three acres of Great Salt Pond and extend its docks 170 feet seaward. The marina had originally asked for four acres of public water and an extension of 240 feet.

The full CRMC denied the expansion by a 5-5 vote in February 2006. Judge Vogel reversed that decision by disqualifying the votes of CRMC Chairman Michael Tikoian, Vice Chairman Paul Lemont and former council member Jerry Zarrella. She argued that all three had demonstrated bias and had engaged in improper ex parte communications.

Four members of the Supreme Court, including Robinson, new Chief Justice Paul Suttell, Francis X. Flaherty and former Chief Justice Frank Williams, were particularly active in the hour-long session, asking about a number of issues regarding Vogel’s decision. They focused their questions on quasi-judicial immunity and bias, and finding a remedy.

Justice Maureen McKenna Goldberg, wife of Champlin’s lead attorney Robert Goldberg, recused, and Managhan handled the presentation for the marina.

Marc Desisto and Brian Goldman represented the CRMC, while Dan Prentiss spoke for the town, the Committee for the Great Salt Pond, the Block Island Land Trust and the Block Island Conservancy. Jerry Elmer represented the Conservation Law Foundation.

The gallery was filled with many island faces, and Chief Justice Suttell called for extra chairs to seat spectators.

Incomplete record

All sides concede that improper ex parte communication — discussion off the record — took place during CRMC’s deliberation of the marina expansion.

The communication between staff and voting members was the “usual practice” at the CRMC and “entirely innocent of origin,” said attorney Prentiss. He said the practice made sense when “non-professional” voting members must consider “highly technical” material.

CRMC’s Goldman concurred, saying, “We allowed our members to talk to staff. Normal procedure … nothing evil. Arnold overturned that.”

(The Supreme Court’s Arnold v. Lebel decision three years ago said that ex parte communication is not allowed, at least for certain state hearing officers.)

The subject of much dispute in the matter has been the “Goulet plan” — a 100-foot expansion plan drawn up by CRMC staff engineer Dan Goulet at the behest of CRMC Executive Director Grover Fugate. It was never made part of the official record. Champlin’s attorneys claim that Tikoian had asked for the plan and Lemont had lobbied for it with his fellow subcommittee members — Zarrella, Jerry Sahagian and Tom Ricci.

In the wake of the Arnold decision, and with the Goulet plan in mind, Goldman said he realized the Champlin’s record was “woefully incomplete.” He filed papers with Judge Vogel calling for a remand to complete the record. He said Vogel responded by calling his request “arrogant and cavalier.”

Quasi-judicial immunity and bias

Desisto argued that Vogel was “wrong to pursue” the evidentiary hearings that put Tikoian and Lemont on the stand. Because CRMC voting members are considered “quasi-judicial” officers — like judges — their decision-making processes are considered off-limits to inquiry, he said.

Justice Flaherty pointed out that it would have been “impossible” to ask the CRMC members how they arrived at a decision without “getting into mental processes.”

Desisto explained that when considering the Champlin’s application, CRMC members had the authority to “accept, reject or modify” the proposed plan. He questioned why Lemont should be considered biased for supporting an alternative 100-foot plan, when other subcommittee members had recommended their own 170-foot alternative.

Offering an alternative was “what [Lemont] should have done,” argued Desisto; the other subcommittee members had done the “same thing,” he said, yet in Lemont’s case “the lower court found bias.”

Champlin’s attorney Managhan countered that Lemont pushed for the 100-foot Goulet version only because he had heard that the town might favor such a plan. The 170-foot subcommittee recommendation, she argued, was derived from the record and constituted what the members considered to be an expansion safe for navigation.

Suttell pointed out that the 170-foot plan was derived from slides that had never been entered into the record. The slides “reflected the record,” argued Managhan. But wasn’t the fact that the town could live with 100 feet also part of the record, asked Suttell.

Managhan said the subcommittee recommendation was a “modification,” not a “compromise,” while “Lemont only cared about what the town wanted.”

Flaherty suggested that it isn’t unusual for decision-makers to take into consideration the desires of all the parties before them. “Adjudicators weigh that all the time,” he said.

Robinson pressed home. In order to arrive at what drove Lemont’s decision-making, he said, it was necessary to encroach on quasi-judicial immunity. He asked whether Judge Vogel’s evidentiary hearing should have been allowed.

Managhan insisted it was proper because Lemont’s attitude was already part of the record, and because he had openly pushed for the Goulet plan.

Suttell observed that his reading of the record showed that Fugate had sought the plan.

Robinson offered the thought that U.S. Supreme Court Justice Earl Warren had lobbied strongly for an outcome in the landmark Brown vs. Board of Education case, and he didn’t find that improper.

Managhan maintained that Lemont tried to “sell” the Goulet Plan, which was made up of “stuff outside the record.”

CRMC’s Goldman told the court that he had raised quasi-judicial immunity “ad nauseum” in the lead up to evidentiary hearings, but that Vogel overruled him.

He suggested the court must rule on the issue, because “as sure as night follows day” future litigants would call decision makers from all state agencies to the stand to probe their thought processes.

Four ‘no’s become a ‘yes’

Prentiss asked the court to “look at the evidence, not the conclusions.” For example, he noted, Vogel in her ruling twice said Tikoian had actively sought the Goulet plan, even though the testimony of Goulet, Fugate, Tikoian and Lemont was that Tikoian had nothing to do with it.

With “four ‘no’s’, it’s not reasonable to conclude ‘yes,’” said Prentiss.

Prentiss conceded that Tikoian had spoken to the governor about the Goulet plan and also approached the subcommittee members before their recommendation. Still, he said it would be difficult to say what side Tikoian came down on, inasmuch as he had “tried to push [the expansion through] in one night” at the application’s first hearing in December 2003.

Justice Flaherty asked Prentiss how the court should handle the off-the-record Goulet plan — even without questions of bias, wouldn’t the plan alone necessitate a “vacation” of the original denial?

Prentiss said the proper route would be remand to the CRMC to add the plan to the record.

Case ‘prejudged’

Managhan argued that Vogel was correct to hold the evidentiary hearings and to find bias on the part of Tikoian and Lemont. The two had demonstrated that they had “prejudged” the matter, she said. As to Zarrella, she said only that Champlin’s would not appeal his disqualification.

She said that Tikoian improperly lobbied subcommittee members Ricci, Zarrella and Sahagian to vote for a smaller plan months before their recommendation, saying “I’m going to have something drawn up for you to vote on.”

Tikoian was not supposed to interfere with the subcommittee process before it issued a recommendation, she said.

When pressed by Robinson to explain how that would be different from a judge pushing for a settlement, Managhan responded that there was a difference between saying,“‘you should settle’ and ‘I’m going to tell you how to decide the case.’”

She added that Tikoian’s expression of “disappointment” to the Providence Journal in the aftermath of the subcommittee’s recommendation in 2005 “entrenched” his position and indicated “prejudgment.”

Only one decision

Desisto argued that the lower court “completely ignored” 86 findings of fact resulting from the initial expansion denial, and that Vogel wrongfully substituted her “own judgment for that of the full council.”

Prentiss, following the same line of argument, said that Vogel “did not appreciate” that there had been only one decision in the case to date — the CRMC denial of the expansion. “She failed to address the decision,” said Prentiss, and instead “discarded it.”

Prentiss said Vogel did not consider “the most relevant” testimony from witnesses who said that the existing Champlin’s Marina configuration is “woefully insufficient,” and the expansion it seeks could be accomplished with “less seaward expansion.”

The expansion Vogel allowed was based on the subcommittee’s recommendation of 3 acres and 170-feet.

Flaherty pointed out that while the subcommittee had no authority to make a decision, Vogel referred to it in her ruling as a “decision.”

Robinson scolded Managhan at one point for referring to the 5-5 expansion denial as the “so-called decision.”

“It was the decision,” barked Robinson. “Not ‘so-called’ decision.”

Managhan maintained that Vogel had the right to reverse the decision.

Constitutionality

Conservation Law Foundation attorney Jerry Elmer argued that the objectors in the case — the town, et al — had a constitutional right to an appeal if the expansion permit were allowed to stand.

He argued that the Superior Court was “not the proper locus to issue a permit like this,” and that the “CRMC exists to handle that.”

Like his fellow lawyers, he suggested the proper remedy was to remand: complete the record, allow cross-examination and then revote.

Elmer also pointed out that Champlin’s sought the lengthy evidentiary hearing, and was therefore largely responsible for any delay.

Seeking a remedy

CRMC attorney Desisto also argued that, as with a zoning or planning board, the proper remedy in the Champlin’s matter was to complete the record, allow cross-examination, then take another vote.

That would mean entering the Goulet plan into evidence.

Before voting, new CRMC voting members who were not present for the 2006 Champlin’s vote would be required to read the 3,000-page transcript culled from 23 subcommittee hearings held over two years.

The Supreme Court could uphold Vogel’s decision, or send the matter back to her court with specific instructions on how to proceed.

A ruling is expected in six to eight weeks.

Chief Justice Suttell thanked all the lawyers involved. He said the case was well argued and “extremely well briefed.”